Brown v. ACMI Pop Div., — N.E.2d —-, No. 06-0870, 2007 WL 2214544 (Ill. App. Aug. 2, 2007) [Download the opinion]

The Appellate Court of Illinois recently addressed some questions arising at the sometimes murky border between copyright and the right of publicity. At issue was whether Corbis, the online stock photography company, violated the late singer James Brown’s right of publicity by offering to license the copyright in photos of him, even though he had not consented to the use by Corbis of his name or image.

Corbis moved to dismiss under 735 ILCS 5/2-619 (which is much like a motion for summary judgment), arguing that the offering of copyright licenses through the website was not an unauthorized commercial use, and therefore not a violation of Brown’s right of publicity under the Act and at common law. The court denied the motion, and Corbis sought interlocutory review with the Appellate Court. On appeal, the court affirmed the trial court’s denial of the motion to dismiss.

Corbis argued that Brown’s allegations were “premised on an unprecedented legal theory that a copyright for a photograph of an individual cannot be licensed unless the publicity rights are obtained by the licensor, not the end user, without regard to the ultimate use of the photograph.” Citing to earlier Illinois cases in which the name and image of certain well-known figures had been used in novels and in news coverage, Corbis claimed that the use of the image was a “vehicle of information,” much like a news report.

Brown argued that Corbis’s use of the photos was not as a mere “vehicle of information,” but were being sold for commercial purposes, as merchandise or a good. But Corbis sought to distinguish its activity as a “service,” namely, licensing the “incorporeal image,” which is “purely intangible.” Corbis also asserted that permitting Brown to charge a fee for permission to use his image for news reporting (many of Corbis’s customers were news media outlets) would violate the First Amendment. Moreover, the Right of Publicity Act specifically exempts use of images for noncommercial purposes, such as news reporting.

In affirming the denial of the motion to dismiss, the court observed the “vast difference of opinion regarding the interpretation of the definition of what Corbis sells and the legal effect of such sales.” Accordingly, the court determined, a material and genuine disputed question of fact remained, so the trial court’s refusal to dismiss the matter was appropriate.